116 Mo. 288 | Mo. | 1893
I. If there was any error in the court permitting the Hon. Chester H. Krum to prosecute on the part of the state, such error cannot avail the defendant, because he distinctly waived any such objection and saved no exception to the substitution mentioned. Besides, under the provisions of section 643, Revised Statutes, 1889, the court had the power to appoint an attorney to represent the state in the case of the sickness or absence, as was the case here, of the regular prosecuting officer. Moreover, aside from statutory provisions, there exists an inherent power in a court, if there be no prosecuting officer in attendance, to appoint a temporary representative of the state. State v. Moxley, 102 Mo. loc. cit. 384, and cases cited. And the fact that in the absence of the circuit attorney, the trial court permitted another to represent him, was tantamount to an appointment.
II. The indictment in this cause is in usual form, and would be unobjectionable, even against a demurrer ■or motion in arrest, and even were it not thus free from flaw, objection could not be taken to it, as was here attempted, ore teams. State v. Risley, 72 Mo. 609; State v. Meyers, 99 Mo. 107. For this reason the objection made by the defendant to the introduction of any evidence because of the insufficiency of the indictment was, consequently, untenable.
The objectionable remarks alleged to have been made by Judge Krum in his opening statement, and in his concluding argument, not having been preserved in the manner above noted, are not legitimate subjects of comment in this court, since the affidavits offered to prove such remarks are no evidence that such remarks were made. State v. Welsor, 21 S. W. Rep. 443, and cases cited.
IY. Contention is made that error occurred in permitting an armed guard to be stationed by the defendant “during the entire trial, and during .the time he was testifying.” There is nothing of the kind preserved in the bill of exceptions to show that such objection was takbn until the third day of the trial, when the defendant was the last witness examined. There was no force in the objection, even if an “armed” guard did constantly attend the defendant during the trial and while he was testifying. Certainly the mere statement of defendant’s counsel preserved in the bill of exceptions does not prove the existence of the fact. But, if it did, there was nothing improper in an armed guard keeping watch over a defendant charged with murder in the first degree, and who, if much of the testimony heretofore recited is true, is a desperate and dangerous character. Furthermore, it is competent for the court to direct in what manner a
The same line of remark applies to an officer attending Newman, indicted for murder in the first degree, and brought into court to testify in behalf of defendant on hab. corp. ad. testif.
Y. It is claimed that error occurred in impaneling the jury; that incompetent jurors were selected. There is no proof of this in the bill of exceptions, and the recital of it in the motion for new trial would not prove it; such motions do not prove themselves. State v. Musick, supra; State v. Hayes, supra; State v. McDaniel, 94 Mo. 301. Nor could the affidavits filed with the motion establish the truth of the statements the motion contains. Ibid.
YI. Certain errors in the admission of the evidence on the part of the state alleged to have occurred during the trial, will now be noticed.
(a) Objection was made during a recess of court that a revolver had been exhibited on the table of counsel for the state before it had been called for. This objection was invalid because of the time at which it was made, if for no other.
(b) But it was invalid in any event because it is always competent to exhibit to the jury by way of illustration, models, tools, weapons, implements, etc. This is everyday practice, and one that serves a very useful purpose. 1 Bishop on Criminal Proceedings, sec. 965, and cases cited.
(c) The objection, however, did not go to the use of the pistol when called for, but because it was there before that time. What harm the mere anticipatory
(d) The remark made by Stark to officers Maloney, and Conners when pointing out the defendant, “there is the man that did it,” was undoubtedly competent as part-of the res gestae, State v. Gabriel, 88 Mo. 631; State v. Moxley, 102 Mo. 374; 1 Bishop on Criminal Proceedings, sec. 1085; 1 Wharton on Evidence, sec. 259; State v. Walker, 78 Mo. 380.
(e) Maloney had stated in his examination-in-chief that he saw defendant rise from behind the bar and fire the fatal shot which killed Brady. The state then propounded this question to the witness: “Have you any doubt, Mr. Maloney, as to the fact of Duncan rising from behind that counter and delivering the shot as you have described it?” This question was objected to on the ground that it called for the opinion of the witness. This is a mistake; the question merely sought to ascertain of the witness if he was firm in his conviction of having seen defendant rise and shoot, and his answer was: “I have no doubt, for I saw him positive.” Both question and answer were entirely legitimate.
(f) In, State v. Jackson, 95 Mo. 623, it was ruled that evidence was admissible to show that a prisoner had requested another to secure'tools so that he might effect his escape, and by parity of reasoning, evidence was competent to show that defendant had saws on his person in jail with the intent to make his escape in case of a conviction.
(g) Newman having testified in chief that it was Stark that killed Brady, was asked'on cross-examination why it was that kb had never disclosed to any one before the important fact that Stark, was guilty apd defendant innocent, although two years nearly had elapsed, etc., and when he avoided the question and evaded reply he was pressed for an answer, but would
(h) Evidence was wholly inadmissible that Starks had admitted that he “had done some shooting there that night.” This proposed evidence wasthe merest hearsay. Even had Stark directly admitted that he had killed Brady, evidence of such admission would still have been hearsay. State v. Evans, 55 Mo. 460.
VII. 'There was abundant evidence, if believed by the jury, to support the verdict of guilty of murder in the first degree, and then there are besides the confession made by the defendant, and his admission' made to the officers when he came from behind the bar and was compelled to surrender.
■ VIII. It remains to discuss the instructions. They were those usually given as to murder in the first and second degrees, and instructions were given also on the theory of self-defense, which to say the least of them were very liberal indeed.
The seventh instruction as to the doctrine of falsus in uno, etc., was in usual form and correct and it was proper to give it as there was much conflict in the testimony which was irreconcileable with any theory except one which would justify the giving of such an instruction.
After a careful examination of the record, discovering no error therein, we affirm the judgment and direct that the sentence of the law be carried into execution.